! 


The  New  Employers'  Liability 

AND 

Employees’  Compensation  Law 

OF  CALIFORNIA 


CHAPTER  399. 

Known  as  Senate  Bill  No.  14,  drafted  and  introduced  by  Senator 
Roseberry  of  Santa  Barbara,  amended  at  the  instance  of  Organ- 
ised Labor,  signed  by  Governor  Hiram  W . Johnson  on  April 
8,  1911,  and  to  take  effect  on  September  1,  1911.) 


ISSUED  BY 

CALIFORNIA  STATE  FEDERATION  OF  LABOR 

SECRETARY’S  OFFICE 


Labor  Temple,  316  Fourteenth  Street 

SAN  FRANCISCO,  CAL. 


Bulletins  pertaining  to  the  work  of 
the  .Thirty-ninth  Session  of  the  Cali- 
fornia Legislature  have  already  been 
issued  as  follows: 

Report  on  Labor  Legislation  (is- 
sued April  12,  1911).  • 

Supplementary  Report  on  Labor 
Legislation  (issued  May  12,  1911). 

Bulletins  will  be  issued  in  the  near 
future,  as  follows: 

Report  on  Constitutional  Amend- 
ments (to  be  voted  upon  at  the  special 
election  to  be  held  on  Oct.  10,  1911). 

The  Anti-Injunction  Bill  and  rea- 
sons why  it  should  be  enacted  at  the 
next  session  of  our  Legislature. 


INTRODUCTORY. 


The  New  Employers’  Liability  and  Employees’  Voluntary  Compensation 
Law  of  California  is,  as  the  title  implies,  a combined  liability  and ' compensa- 
tion act.  Its  salient  features  are  as  follows: 

1.  ' Increasing-  the  liability  of  the  employer  for  injury  or  death  resulting 
therefrom,  suffered  by  an  employee  in  the  course  of  the  employment  and 
through  the  fault  or  negligence  of  the  employer  or  of  a person  for  whose 
conduct  he  is  held  responsible,  by  the  removal  of  certain  customary  defenses. 

2.  Providing  for  automatic  compensation  in  cases  of  accident  regardless 
of  fault  or  negligence  of  either  party. 


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FEATURES  OF  COMPENSATION  LAW. 

In  setting  forth  the  principal  features  of  the  compensation  law,  the  aim 
has  been  to  describe  the  law  and  its  provisions  in  simple  language  by  elimi- 
hating  as  far  as  possible  all  legal  terms  and  phrases. 

It  will  be  to  the  advantage  of  all  workingmen  and  women  of  California 
to  familiarize  themselves  with  certain  phases  of  the  law,  before  it  goes  into 
effect  on  September  1,  1911. 

The  following  is  an  analysis  of  the  compensation  law: 

(a)  To  be  bound  by  the  compensation  plan  in  settling  for  an  accident, 
the  employer  must  have  made  a declaration  of  his  willingness  to  adopt  said 
plan  before  the  accident  occurs.  The  employer  makes  this  declaration  by 
filing  with  the  Industrial  Accident  Board  a statement  to  the  effect  that  he 
accepts  the  plan  of  compensation  provided  for  in  the  Act,  for  the  term  of 
one  year  from  the  date  of  such  filing,  and  thereafter,  without  further  act  on 
his  part,  for  successive  terms  of  one  year,  unless  he  shall  file  a notice  of 
(withdrawal  at  least  sixty  days  before  the  expiration  of  a yearly  period. 

(b)  An  employee  is  conclusively  presumed  to  have  made  his  declaration 
to  adopt  the  plan  if  he  does  not  give  his  employer  a notice  in  writing  that 
he  prefers  not  to  be  subject  to  the  provisions  of  the  Act.  Such  notice  must 
be  given  within  thirty  days  after  >the  employer  has  filed  his  statement  as 
before  mentioned,  or  in  case  the  employer  has  already  adopted  the  plan 
before  the  employee  enters  his  service  the  notice  must  be  given  at  the  time 
such  employee  enters  into  his  contract  of  hire  with  the  employer.  In  any 
event  the  notice  must  be  given  before  the  accident  occurs. 

(c)  Employees  of  the  State,  or  of  any  of  its  municipal  or  public  cor- 
porations, and  those  who  are  not  to  be  classed  as  elective  or  appointive 
officials  for  terras  of  one  or  more  years,  are  subject  to  the  plan  of  com- 
pensation without  the  right  to  make  a preference  to  the  contrary. 

(d)  The  employer  is  bound  to  the  compensation  scheme  in  all  cases 
after  he  has  made  his  election,  but  the  employee  in  case  of  gross  personal 
negligence  on  the  part  of  the  employer  is  not  -bound  by  his  election  and  can 
bring  his  suit  under  the  general  liability  law  so  as  to  recover  increased  and 
exemplary  damages. 


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(e)  To  charge  the  employer  with  liability  under  the  plan  of  compensa- 
tion he  must  be  notified  of  the  accident.  Such  notice  must  be  in  writing, 
stating  the  name  and  the  address  of  the  person  injured,  the  time  and  the 
place  where  the  accident  occurred,  and  the  nature  of  the  injury,  and  signed 
by  the  person  injured  or  some  one  in  his  behalf,  or  in  case  of  his  death,  by 
a dependent  or  by  some  one  in  his  behalf.  Service  of  the  notice  is  made  upon 
the  employer  by  delivering  to  and  leaving  with  hirm  a copy  of  such  notice, 
or  by  mailing  to  him  by  registered  mail  a copy  thereof  in  a sealed  and 
posted  envelope  addressed  to  him  at  his  last  known  place  of  business  or 
residence.  (It  is  of  the  utmost  importance  to  comply  fully  with  the  require- 
ments of  the  Act  in  the  giving  of  this  notice,  as  courts  uniformly  construe 
strictly  and  according  to  the  letter  similar  requirements  in  other  statutes, 
holding  such  as  conditions  that  must  be  fulfilled  before  they  will  enforce  a 
right  that  is  conferred  by  statute  and  not  recognized  by  the  common  law.) 

(f)  The  compensation  for  an  injury  will  be  as  follows:  First — Medical 
or  surgical  aid,  not  to  exceed  one  hundred  dollars  or  for  a greater  period 
than  ninety  days.  Second — Pecuniary  weekly  benefits  if  the  disability  lasts 
more  than  one  week. 

In  case  of  total  disability  the  employee  will  receive  65  per  cent  of  his 
average  weekly  wages,  unless  a nurse  is  required,  in  which  case  he  receives 
100  per  cent.  In  case  of  partial  disability  the  employee  will  receive  65  per 
cent  of  the  weekly  loss  in  wages. 

The  aggregate  benefits  for  a single  injury  can  not  exceed  three  times  the 
average  annual  earnings  of  the  employee.  No  benefit  is  paid  for  the  first 
week’s  disability,  and  no  benefits  will  be  paid  beyond  fifteen  years  after  the 
accident  occurred.  Average  annual  earnings  are  computed  according  to  certain 
rules,  but  shall  not  be  taken  at  less  than  $333.33,  nor  more  than  $1666.66. 

In  case  of  death  the  employer  shall  pay  a sum  which  added  to  the 
benefits  paid  would  equal  three  times  the  average  annual  earnings,  but  in 
no  case  less  than  $1000  or  more  than  $5000;  this  death  benefit  is  to  go  to 
total  dependents,  that  is,  a wife,  a dependent  husband,  or  children  under 
eighteen  years.  Partial  dependents  are  also  provided  for  in  proportion  to 
their  dependence  upon  the  deceased.  In  case  there  is  no  person  dependent 
upon  the  deceased  the  employer  pays  only  the  funeral  expenses  not  to 
exceed  $100. 

(g)  The  injured  employee  shall  be  subject  to  examination  from  time  to 
time  by  a regular  practicing  physician,  provided  and  paid  for  by  the  em- 
ployer, likewise  from  time  to  time  by  a physician  selected  by  the  Industrial 
Accident  Board,  or  any  member  or  examiner  thereof.  If  the  employee  re- 
fuses to  submit  to  such  examination  after  a written  request  from  the  em- 
ployer, his  right  to  compensation  will  be  suspended  so  l6ng  as  he  refuses, 
and  if  still  refusing  after  direction  by  the  Board,  his  weekly  benefits  will 
be  barred  during  the  period  of  refusal. 

(h)  For  the  settlement  of  all  disputes  that  may  arise  under  the  Act 
there  is  provided  an  Industrial  Accident  Board  consisting  of  three  members 

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who  are  to  be  appointed  by  the  governor,  at  first  for  two,  three  and  four 
years,  respectively,  and  thereafter  for  terms  of  four  years.  Fifty  thousand 
dollars  has  been  appropriated  for  the  expenses  of  the  Board,  including  sal- 
aries at  $3,600  per  year  for  each  member.  The  office  of  the  Board  will  be 
at  San  Francisco. 

(i)  The  awards  of  the  Board  may  be  entered  by  the  Superior  Courts  as 
judgments  therein,  and  the  Superior  Court  is  given  the  power  to  review  all 
cases,  to  set  aside  awards,  and  send  them  back  for  a new  trial.  Right  of 
appeal  to  the  Supreme  Court  is  given.  All  cases  before  the  Board  and  the 
courts  are  to  be  given  a speedy  hearing  and  decision. 

COMMENT  ON  COMPENSATION  LAW. 

The  object  of  this  law  is,  so  far  as  it  is  possible  under  the  constitution 
of  this  State,  to  place  the  burden  of  industrial  accidents  upon  each  particular 
industry  instead  of  upon  the  injured  person,  his  family,  or  private  or  public 
charity  as  is  generally  the  case  under  present  conditions.  This  object  is 
sought  to  be  accomplished  by  so  increasing  the  employer’s  liability  for  acci- 
dents and  subjecting  him  with  greater  certainty  to  the  payment  of  damages 
therefor,  that  to  escape  heavy  and  indefinite  verdicts  he  will  be  induced  vol- 
untarily to  accept  the  automatic  compensation  plan.  Both  the  employer  and 
the  employee  derive  distinct  advantages  under  this  system  that  will  appeal 
to  them.  The  employer  will  know  more  accurately  what  it  will  cost  him 
to  care  for  his  injured  employees,  besides  having  the  satisfaction  that  he  is 
fulfilling  his  duties  to  those  who  are  aiding  him  in  his  enterprise  and  risk 
life  and  limb  to  promote  his  financial  interests.  He  can  protect  himself 
better  by  way  of  insurance,  or  by  charging  the  cost  of  compensating  injured 
employees  to  the  up-keep  of  his  establishment  and  adding  it  to  the  prices 
of  the  commodities  or  services  he  furnishes  his  customers.  The  burden,  thus, 
is  borne  directly  by  the  industry  and  is  ultimately  distributed  upon  the  com- 
munity at  large.  The  employee  will  receive  the  benefits  regularly  like  ordi- 
nary weekly  wages,  and  the  aid  will  come  at  a time  when  most  needed  and 
appreciated.  Both  sides  will  avoid  costly  and  protracted  litigation,  which  in 
the  case  of  the  employee  often  means  the  loss  of  evidence  and  all  chance  of 
recovery;  and  even  when  the  employee  recovers  after  years  of  delay  he  must 
divide  the  proceeds  with  his  lawyer,  so  that  practically  he  obtains  but  little 
while  his  employer  looses  heavily  for  the  benefit  mostly  of  people  not  im- 
mediately concerned.  In  the  last  eleven  years,  it  was  estimated  by  the  New 
York  commission,  that  out  of  more  than  one  hundred  million  dollars  paid 
on  account  of  accidents  by  employers  only  about  thirty  millions  were  dis- 
bursed to  injured  employees.  . Seventy  millions  went  to  lawyers  and  to  in- 
surance companies  for  assuming  and  contesting  the  employers’  liabilities. 
And  as  the  employees  who  did  recover  damages  had  to  share  their  receipts 
of  thirty  millions  with  their  lawyers,  it  is  easy  to  comprehend  what  an 
enormous  waste  to  the  parties  immediately  concerned  is  entailed  under  a 


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system  of  general  liability  without  any  system  of  fixed  compensation  even 
where  such  liability  is  of  the  meagre  quality  prevailing  in  most  States. 

CHANGE  IN  EMPLOYERS’  LIABILITY  LAW. 

The  first  section  of  the  Act  contains  the  provisions  relating  to  employ- 
ers’  liability  in  general,  and  reads  as  follows: 

Section  1.  In  any  action  to  recover  damages  for  a personal  injury 
sustained  within  this  State  by  an  employee  while  engaged  „ in  the  line 
of  his  duty  or  the  course  of  his  employment  as  such , or  for  death  re- 
sulting from  personal  injury  so  sustained , in  which  recovery  is  sought 
upon  the  ground  of  zvant  of  ordinary  or  reasonable  care  of  the  em- 
ployer, or  of  any  officer,  agent  or  servant  of  the  employer,  the  fact  that 
such  employee  may  have  been  guilty  of  contributory  negligence  shall 
not  bar  a recovery  therein  where  his  contribiftory  negligence  was  slight 
and  that  of  the  employer  was  gross,  in  comparison,  but  the  damages 
may  be  diminished  by  the  jury  in  proportion  to  the  amount  of  negli- 
gence attributable  to  such  employee,  and  it  shall  be  conclusively  pre- 
sumed that  such  employee  'was  not  guilty  of  contributory  negligence  in 
any  case  where  the  violation  of  any  statute  enacted  for  the  safety  of 
employees  contributed  to  such  employee  s injury;  and  it  shall  not  be  a 
defense : 

(1)  That  the  employee  either  expressly  or  impliedly  assumed  the 
risk  of  the  hazard  complained  of. 

(2)  That  the  injury  or  death  was  caused  in  whole  or  in  part  by 
the  want  of  ordinary  or  reasonable  care  of  a fellow  servant. 

The  second  section  provides  merely  that  the  employer  can  not  evade 
his  liability  by  any  contract,  rule  or  regulation,  contrary  to  the  provisions 
of  the 'first  section. 

The  third  section  lays  down  a special  liability  on  all  employers  who 
accept  the  compensation  plan,  and  provides  that  such  liability  shall 
cover  all  accidents  irrespective  of  fault  of  either  side,  except  when  the  injury 
is  due  to  the  wilful  misconduct  of  the  employee  himself. 

The  part  of  the  Act  which  deals  with  employers’  liability  in  general  is 
compulsory  because  it  operates  in  all  cases  where  damages  may  be  awarded 
by  a jury  and  where  the  claimant  is  not  entitled  to  or  bound  by  the  auto- 
matic compensation  plan  a-s  heretofore  described.  The  part  relating  to 
compensations  is  voluntary  in  character  because  it  operates  only  in  such 
cases  where  before  the  accident  happens,  both  the  employer  and  the-  em- 
ployee have  consented  in  the  manner  heretofore  described  in  sub-sections  a,  b 
and  c,  to  be  bound  by  the  plan  of  compensation.  This  voluntary  feature  of 
the  law  saves  it  from  many  constitutional  objections  that  are  held  or  pre- 


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sinned  to  invalidate  compulsory  compensation  laws  enacted  or  proposed  in 
other  States.  The  ground  for  this  distinction  is  that  in  law,  parties  may 
waive  or  relinquish  constitutional  rights  designed  for  their  own  protection. 

In  order  to  better  understand  the  nature  of  the  changes  in  employers’ 
liability  effected  by  the  first  section  of  the  new  law,  it  is  necessary  to  com- 
pare it  with  section  1970  of  the  Civil  Code  which  hitherto  chiefly  controlled 
such  liability  in  this  State. 

Section  1970  of  the  code  may  be  described  simply  as  a statutory  enact- 
ment declaratory  of  the  common  law  as  adjudicated  in  some  of  the  leading 
States  of  the  Union  with  respect  to  employers’  liability.  Notwithstanding 
that  this  section  has  been  amended  on  several  occasions  at  the  demand  of, 
and  in  the  interest  of  labor,  it  preserved  most  of  the  original  rigor  of  the 
common  law  and  favored  unduly  the  employer  by  permitting  him  to  plead 
the  several  defenses  or  rules  of  law  laid  down  by  the  judiciary  to  exempt 
him  from  liability  for  injuries  to  his  employees.  This  section  of  the  code 
thus  permitted  all  the  customary  defenses,  among  which  may  be  mentioned 
the  rules  relating  to  fellow  servants,  assumption  of  risk,  contributory  negli- 
gence, and  volenti  non  fit  injuria  (a  rule  based  on  the  maxim  that  ‘‘he 
suffers  no  injury  who  consents  to  it”). 

The  only  mitigation  in  the  severity  of  the  common  law  made  by  the 
Legislature  was  with  respect  to  the  fellow  servant  rule.  That  rule  was  first 
promulgated  in  England  in  1837,  in  the  case  of  Priestly  v.  Fowler,  and  pre- 
vented an  employee  from  obtaining  any  compensation  if  the  injury  was  due 
to  the  fault  or  negligence  of  a fellow  employee.  The  courts  of  this  country 
eagerly  adopted  and  extended  this  rule  so  that  it  came  to  cover  servants  of 
every  character,  of  every  department  of  a common  employment,  and  regard- 
less of  circumstances  whether  such  servants  ever  knew  or  had  ever  met  one 
another  before  the  accident,  or  were  working  at  places  miles  away  from 
each  other  at  the  time  of  the  accident.  The  absurdity  and  injustice  of  such 
adjudications  led  early  to  the  promulgation  by  more  humane  judges  of 
numerous  exceptions,  so  that  this  section  was  amended  to  make  the  em- 
ployer liable  for  the  fault  or  negligence  of  a superior  servant  or  a servant 
having  the  right  to  control  or  direct  the  services  of  the  injured  employee; 
also  for  fault  or  negligence  of  a servant  employed  in  a different  department, 
or  employed  upon  a machine,  railroad  train,  switch  signal  point,  or  other 
appliance  than  that  upon  which  the  injured  employee  is  employed.  Excep- 
tion to  the  fellow  servant  rule  was  made  also  where  a co-employee  was 
charged  with  dispatching  trains,  or  transmitting  telegraphic  or  telephonic 
orders  upon  any  railroad,  or  in  the  operation  of  any  mine,  factory,  machine 
shop  or  other  industrial  establishment. 

The  first  section  of  the  new  law  in  effect  on  Sept.  1,  1911,  abolishes 
entirely  the  fellow  servant  rule  and  the  defense  known  as  assumption  of 
risk.  The  defense  known  as  contributory  negligence  is  mitigated  in  impor- 
tant respects.  Contributory  negligence'  is  where  negligence  both  on  the 
part  of  the  employer  and  of  the  employee  contributes  to  an  accident.  At 

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Common  law  and  in  this  State  up  till  now  contributory  negligence  of  the 
employee  bars  recovery.  The  new  section  gives-  a right  of  action  not  in 
all  cases  but  at  least  where  it  can  be  shown  that  the  contributory  negli- 
gence of  the  employee  was  slight  and  that  of  the  employer  gross  in  com- 
parison, when  damages  are  to  be  awarded  by  the  jury  in  proportion  to  the 
amount  of  negligence  shown.  Furthermore,  the  defense  of  contributory 
negligence  is  taken  away  from  the  employer  entirely  where  the  accident  is 
caused  through  the  neglect  of  the  employer  to  observe  a statute  enacted 
for  tjhe  safety  of  the  employees. 

In  dealing  with  the  change  made  by  the  first  section  with  respect  to 
the  rule  of  assumed  risk,  it  is  somewhat  difficult  in  the  absence  of  judicial 
determination,  which  no  doubt  will  be  forthcoming  soon,  to  express  an  ex- 
planation that  will  be  entirely  satisfactory  to  all  that  have  so  far  looked 
into  the  matter,  as  opinions  will  vary  with  different  minds  attaching  varying 
degrees  of  weight  to  the  many  conflicting  principles  involved  in  the  question. 

VOTE  FOR  SENATE  CONSTITUTIONAL  AMENDMENT  NO.  32. 

As  a whole  the  new  liability  law,  defective  though  it  may  be  in  many 
respects,  is  a great  step  in  advance  towards  the  goal  of  establishing  com- 
plete liability  of  employers  for  accidents  occurring  in  their  respective  in- 
dustries. It  is  to  be  hoped  that  Senate  Constitutional  Amendment,  No.  32, 
authorizing  the  Legislature  to  enact  a compulsory  compensation  law,  will 
be  adopted  at  the  Special  Election  to  be  held  on  October  10,  1911.  Our 
next  Legislature  will  then  be  in  a position  to  enact  a more  complete  lia- 
bility law  and  a compensation  law  of  a compulsory  nature,  either  on  present 
lines  or  by  the  adoption  of  some  system  of  insurance  conducted  by  the  State. 
With  this  end  in  view  all  our  members  and  friends  are  earnestly  urged  to 
support  and  vote  for  Senate  Constitutional  Amendment,  No.  32. 


Issued  by  California  State  Federation  of  Labor,  San  Francisco, 
June  15,  1911. 


